TaxTMI 
TaxTMI 
TaxTMI 
2006 (5) TMI 570
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....the respondent-High Court of Kerala, set aside the judgment of the learned single Judge and held that the selections and appointments made were regular in all respects. 2. Mr. C.T. Sivanandan and Mr. Shahjahan M. are the appellants in Civil appeal Nos. 3377-3378 of 2005. Aggrieved against the judgment dated 1.3.2005 in Writ appeal No. 1584 of 2004 and O.P. No. 6784 of 2002 of the High Court of Keraka, they filed the above appeals by which the Division Bench set aside the judgment of the learned single Judge. Special Leave Petition(c) Nos. 14140-14141 of 2005 were filed by Mr. V.R. Manu Manaswini against the common impugned judgment dated 1.3.2005 passed in W.A. No. 1497 of 2004 and W.A. No. 1719 of 2004 whereby the Division Bench by its final order allowed Writ Appeal No. 1497 of 2004 filed by the High Court of Kerala and dismissed Writ Appeal No. 1719 of 2004 filed by the appellant herein - Mr. V.R. Manu Manaswini. 3. The short facts are as follows: The High Court of Kerala by its Notification dated 26.3.2001 invited applications for the appointment to the post of Munsiff-Magistrate in the Kerala Judicial Services in the pay scale of Rs. 2500-4000. The relevant part....
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....otal marks of written examination and 30 per cent of the marks for the oral examination shall be eligible for appointment provided that the minimum marks required for pass in each paper of the written examination shall be 30 per cent with an overall minimum of 35 per cent of the total marks for candidates belonging to Scheduled Castes/Scheduled Tribes. Fraction of half or more than half shall be regarded as full mark and less than half shall be ignored. (4) No candidate who has not secured the minimum marks prescribed above in the written examination shall be called for oral examination. (5) The marks secured by the candidates at the oral examination shall be added to the total marks secured by them at the written examination and the names of all those candidates shall be arranged in the respective lists on the basis of the total marks secured by them. 11. Application form and application fee - ... 12. Certificates/Documents - ... (i)... (ii)... Certified that Shri/Smt. ...has been actually practising an...Court since and that his/her character and conduct are/were station Date : Signature,Name & Designation of th....
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....ed Counsel have stated before this Court that in the event of writ appeal being allowed, their appointment being quashed and they will not claim equity on the ground that they have jointed the service earlier. Recording the above statement, we think it is not necessary to entertain this petition hence this special leave petition is disposed of. Sd/- Sd/- (Ganga Thakur) &nb....
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....erred to as "the Rules") were made in exercise of the powers conferred by Articles 234 and 235 of the Constitution of India and Sub-section(1) of Section 2 of the Kerala Public Services Act, 1968 (19 of 1968). Rule 7 of the Rules reads thus: 7. Preparation of lists of approved candidates and reservation of appointments - (1) The High Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number of vacancies likely to be filled up and prepare a list of candidates considered suitable for appointment to category 2. The list shall be prepared after following such procedure as the High Court deems fit and by following the rules relating to reservation of appointments contained in Rules 14 to 17 of Part II of the Kerala State and Subordinate Services Rules, 1958. (2) The list consisting of not more than double the number of probable vacancies notified shall be forwarded for the approval of the Governor. The list approved by the Governor shall come into force from the date of the approval and shall remain in force for a period of two years or until a fresh approved list is prepared, whichever....
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....gh Court of Kerala shall hold examination written and oral and prepare a list of suitable candidates for appointment to category 2. The wording written and oral means the suitability of a candidate eligible for appointment has to be considered by the aggregate marks of written examination and oral examination. The legislative intention is to take the aggregate marks of both written examination and oral examination to decide the suitability of the candidate. List has to be prepared after following such a procedure as the High Court deems fit. Procedure means the manner of doing things and not substantive. Fixing a separate minimum cut off marks is not procedural which is an additional eligibility for the post which is contrary to Rule 7. Rule 7 is silent as to the fixation of cut off marks which is for relaxation from time to time for the purpose of reservation. The wording procedure deems fit does not confer any power on the selection Authority so as to take away a right provided elsewhere, reported in Raja Ram Mahadev Parjapee's case AIR1962SC753 followed in Babu Nagar and Ors. v. Sree Synthetic. The selection authority cannot follow any procedure not in violations of the Rule....
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....ates who had been selected only because they had got 30% marks in interview irrespective of the facts that the total marks of those candidates are less than the marks obtained by the appellants. The preparation of the Select List was challenged on the ground that Rules 14 to 17 of KSSSR Part II had not been complied since the selection was against the Rules of reservation and on the ground of illegal prescription of cut off marks in oral examination made by the first respondent, the selection agency without statutory sanction. More than 1800 candidates have applied of which 1292 applicants were found valid. 118 candidates have passed in written examination of which 88 were passed in the interview and select list was prepared among these 88 candidates. No supplementary list was prepared by the first respondent with respect to the reserved category candidates. The reserved category candidates who scored sufficient marks to be considered in the merit list were placed in the reserved quota. They have to be placed in the merit list. The reserved vacancies are filled up from the open merit candidates. 14. According to Mr. L.N. Rao, the following questions which are posed for the consi....
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....C 5. Praveen Singh v. State of Punjab (2000)8SCC633 6. State of Punjab v. Manjith Singh (2003) 2 SCC 559 7. Inder Prakash Gupta v. State of J & K and Ors. (2004)6SCC786 (a) In P.K. Ramachandra Iyer and Ors. v. Union of India and Ors. (supra), this Court held as under: Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high up in the merit list was likely to be rejected on the ground that he has not obtained minimum qualifying marks at the viva voce test....This was impermissible and contrary to the Rules and the merit list prepared in contravention of the Rules cannot be sustained. (b) In Umesh Chanda Shukla v. Union of India (supra), it has been held that the Selection Committee had no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix. In the instant case, the Rule is silent as to the fixation of cut off marks in oral examination. Prescription of cut off marks in oral examination for the purpose of elimination following a comprehensive written exa....
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....mination consists of 24 legal subjects divided into four papers of 100 marks each. For each paper, two and a half hours examination was conducted. A comprehensive written examination touching the required subjects in detail which assess the candidate's general knowledge, intellectual capacity, legal learning and legal grasping. Thereafter conducted an oral examination fixing cut off marks for further elimination of the candidates including backward classes, scheduled castes and scheduled tribes. So the mode of selection procedure is unfair and illegal so far it considers the interview which figure up 11.1% of the total marks is the sole decisive factor. Such consideration makes the written test meaningless. Mr. L.N. Rao illustrated the gravity of the situation as follows: A candidate who secures 350 marks in the written examination and obtains 14 marks in the oral examination taken out from the zone of the consideration where as the candidate secures 180 marks in the written examination and 15 marks in the oral examination find a place in the merit list. In the present system, the latter having 43% of marks will outweigh the former having 65% of marks on accou....
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....so required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory Rules operating in the field. It may be that for certain purposes, for example, for the purpose of short listing; it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the statutory Rules. It cannot take any action which per se would be violative of the statutory Rules or makes the same inoperative for all intent and purport. Even for the purpose of short listing, the Commission cannot fix any kind of cut off marks. 16. whether the fixing of separate minimum cut off marks in the interview of further elimination of candidates after a comprehensive written test touching the required subjects in detail is violating of the statute. Mr. L.N. Rao submitted that in the present case, apart from the candidates belonging to backward classes, SC/ST candidates are also disqualified for selection by fixing 30% minimum cut off marks for the oral examination which is arbitrary because unequal are treated alike. Clause 10(3) of the Notification did not co....
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....e. The reservation roster provided in KSSSR for Muslim candidates are 6,16,26,30,46,56,66,76,80,86 and 96. 3. "Backward classes a rational classification recognized by our Constitution, therefore, differential treatment in standards of selection are within the concept of equality." (Para 44 in State of Kerala v. N.M. Thomas. The reservation rosters are to be filled up from the reservation candidates alone, that is reserved for their community (R.K. Sabharwal v. State of Punjab and Ors. [1995]2SCR35 ). The reservation rosters are to be strictly followed as per the Rules. No deviation is permissible (Union of India v. Virpal Singh AIR1996SC448 ). This Court held that candidates of reserved category selected on their own merit are not to be counted as reserved category candidates. A reserved candidate comes in the merit list is to be considered in merit rather than reservation. 4. 82nd Constitution Amendment (2000) provides that nothing in Article 335 shall prevent the State from making any provision in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks with respect to examination/job/promotion. So there should be re....
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.... Bal Mukund Shah [2000]2SCR299 . In that case, this Court discussed the legislative competence of the State Government under Article 309. It was held that legislation for reservation in Judicial appointments can only be made after consultation with the High Court. In that case, Bihar Government made a legislation prescribing 50% posts of District Judges under reservation quota without consulting the High Court. In the instant case, the High Court has no case that the reservation is not applicable. Judicial Service Rules of 1991 is made in consultation with the High Court under Article 234 of the Constitution of India. (8) The learned single Judge is of the view that the Select List (Ann. P-2) can be interfered with only to the extent that the decision to fill up S. Nos. 60,62, 64, 66, 70 which are reserved posts from the open merit candidates. The learned single Judge has observed in paragraph 10 of his judgment that, "But under the pretext of short listing many qualified candidates were irregularly and illegally taken out from the zone of consideration for the reason that they had not obtained qualifying marks in the total examination. Annexure P-2 (Select List) published....
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....h this Court held that there can be no estoppel against Constitution and that the Constitution is not only the paramount law of the land but it is the source and sustenance of all laws. In this regard, he invited our attention to paragraphs 28 and 29 of the above decision. 19. Concluding his elaborate submissions, Mr. Rao submitted that the prayer of the appellants/petitioners is not to quash the select list published by the High Court in its entirety and that the select list may be redone on the basis of the aggregate marks obtained by the candidates in the written and oral examination as envisaged in Rule 7(i). It is submitted that by doing this only 5 or 6 candidates will be affected. 20. Elaborating, Mr. Rao submitted that if this Court is not inclined to redo the list as aforesaid, the case of the appellants/petitioners before this Court be considered on individual basis. The appellants/petitioners are age barred and will not be able to attempt another examination. It is stated that there are 50 vacancies existing and so the interest of the appellants/petitioners can be protected if this Court issues a direction to accommodate the 5 appellants/petitioners before this Cou....
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....the same procedure as laid down in the Notification dated 26.3.2001 by prescribing the securing of minimum marks in the written and oral examinations as a condition of eligibility. The same procedure was followed in the impugned selection also. 23. It is also pertinent to notice that the prescription of a minimum mark for the oral examination as a condition of eligibility for appointment was questioned in the High Court by an aspirant by name Remani, by filing a writ petition. That writ petition was dismissed by a learned single Judge in 1996 (2) KLT 439, wherein the learned single Judge upheld the prescription of a minimum mark for the oral examination as valid and in accordance with Rule 7 of the Rules. This decision made on the judicial side was binding on the administrative side of the High Court and was followed in the subsequent selection in 1998 and in the impugned selection. 24. The oral examination in this case was conducted by the Chief Justice and four senior most Judges, to whom the marks in the written test were not available at the time of the interview. The Judges had to assess the suitability of the candidates for selection as Munsif Magistrate, keeping in min....
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....erred under Rule 7 has to be adjudged in this basis. The said Rule requires the High Court firstly to hold examinations written and oral. Secondly the mandate is to prepare a select list of candidates suitable for appointment as Munsif Magistrates. The very use of the word 'suitable' gives the nature and extent of the power conferred upon the High Court and the duty that it has to perform in the matter of selection of candidates. The High Court alone knows what are the requirements of the subordinate judiciary, what qualities the Judicial Officer should possess both on the judicial side and on the administrative side since the performance of duties as a Munsif or in the higher categories of subordinate Judge. Chief Judicial Magistrate or District Judge to which the candidates may get promoted require administrative abilities as well. Since the High Court is the best Judge of what should be the proper mode of selection, Rule 7 has left it to the High Court to follow such procedure as it deems fit. The High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may get selected. 29. W....
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....ery elaborately and poignantly delineated by S.B. Majmudar, J., speaking for the Constitution Bench in [2000]2SCR299, said that the very responsible and onerous duty is cast on the High Court under the Constitutional scheme and it has been given a prime and paramount position in this mater, with the necessity of choosing the best available talent for manning the subordinate judiciary. The repercussions of wrongful choice is also pointed out in the said judgment. 32. It is significant to note that the appellants/petitioners themselves have not challenged the prescription of minimum cut off marks for the written examination though if their contention is to be accepted, the prescription of such minimum cut off will also be equally invalid. Their contention, in our view, is without any substance and merit. 33. In our opinion, the interview is the best mode of assessing the suitability of a candidate for a particular position. While the written examination will testify the candidates' academic knowledge, the oral test alone can bring out or disclose his overall intellectual and personal qualities like alertness, resourcefulness, dependability, capacity for discussion, ability ....
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....ary exercise of power. 35. In Mohan Kumar Singhania and Ors. v. Union of India and Ors. : AIR1992SC1, S. Ratnavel Pandian, J. speaking for the Bench, observed as under: Hermar Finer in his textbook under the caption The Theory and Practice of Modern government states: The problem of selection for character is still the pons asinorum of recruitment to the public services everywhere. The British Civil Service experiments with the interview. The purpose of viva voce test for the ICS Examination in 1935 could be best understood from the following extract of the Civil Service Commission's pamphlet: Viva Voce - the examination will be in matters of general interest : it is intended to test the candidate's alertness, intelligence and intellectual outlook. The candidate will be accorded an opportunity of furnishing the record of his life and education. It is apposite, in this connection, to have reference to an excerpt from the United Nations Handbook on Civil Service Laws and Practice, which reads thus: ...the written papers permit an assessment of culture and intellectual competence. This interview permits an assessment of ....
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....without a minimum for the interview. However, candidates with less than 40% at the interview were not selected. The selection was upheld by this Court relying on a judgment of Punchhi, J in Rajesh Sood v. Director-General, Employees State Insurance Corporation 1985 (2) S L 699. In Union of India and Anr. v. Amrik Singh and Ors. AIR1994SC2316, though there was no specification in the statutory Rules regarding the minimum length of service for promotion, such prescription was laid by administrative instructions. In para 7, this Court said that the instructions so issued were not inconsistent with the Rules. Reference may also be made to a decision of this Court in Jasbir Singh and Ors. v. State of Punjab and Anr. [1998]2SCR557, in which the relevant Rules did not specify as to the relevant date for considering the age qualification. The advertisement, however, fixed a cut off date, which was contended to be illegal. This Court held that the said prescription was for the purpose of implementation of the Rules regarding age. 38. We may now refer to few decisions cited by Mr. T.L.V. Iyer, learned senior counsel appearing for the respondents, in support of his contentions. 39. In S....
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....e. It has to be observed that these points highlighted practically go unanswered. Of course, valiant effort had been mad by Mr. Sudhkara Prasad, learned Counsel appearing for the respondent, to salvage the situation. He had to agree that the decisions relied on by the learned Judge, referred to earlier, may not apply on all fours. But the submission is that substantial rights cannot at all be circumscribed by a prescription for adopting a procedure. When the Rule does not give power to the authority to prescribe minimum cut off marks, the discretion has to be understood as circumscribed.... 43. This apart, those cases deal with particular situations based on interpretation of the Rules concerned in those cases. In Ramachandra Iyer's case (supra), Rule 14 (paragraph 43 of the judgment) mandated that the marks at the written test and the oral examination have to be aggregated and the merit list prepared on the basis of such aggregation of marks. Therefore, the marks obtained at the written test and the oral test were both relevant whatever be the percentage, in the preparation of the merit list. Nevertheless, the examining Board prescribed minimum for viva voce test and elimin....
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....hat is stated earlier as the distinguishing feature of P.K. Ramachandra Iyer's case applies equally to this decision as well. 45. The third case is Umesh Chandra Shukla v. Union of India (supra). In that case, the Delhi High Court had made a list of 27 candidates after eliminating those who had not obtained the requisite minimum at the test conducted for the purpose. However, the High Court modified the select list prepared in accordance with the Rules by awarding moderation marks to those who did not obtain the prescribed minimum marks at the written test and the viva voce. This was held to be bad because awarding marks by moderation amounted to amendment of the Rules which could not be done by the High Court or the Selection Committee. This decision, therefore, turned on the interpretation of the Rules involved in that case and violation thereof by the High Court by adding moderation marks is contrary to the Rules. This case is also, therefore, distinguishable and has no application to the case on hand. The learned single Judge relied on these three decisions to decide against the High Court. Apart from the fact that these decisions are distinguishable and pertain to the R....
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....ad gone into this aspect and examined this matter with reference to Rules and found that there was no departure from Rules 14 to 17 in the preparation of the list. 47. The list so prepared in accordance with the reservation Rules was forwarded to the Government and the Government, in its turn, examined the matter again in all its aspects and approved the same. 48. Mr. L.N. Rao cited the decision in the case of Rajasthan Public Service Commission and Anr. v. Harish Kumar Purohit and Ors. [2003] 3 SCR 206 . He raised the contention that the so called de-reservation had to be done only by the Government and not by the Selecting authority viz. the High Court. This question is not relevant in this context. There is no question of de- reservation so far as the case on hand is concerned for the reason that it was an application of Rule 15 and the filling up of the posts by open merit candidates as required therein. There is no de-reservation involved at all. The High Court has only followed the mandate of Rule 15. 49. Mr. L.N. Rao made a further contention based on the above decision that the de-reservation of any post has to be done by the Government. This contention, in our vie....
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....interview and contend that the provision of a minimum mark for the interview was not proper. It was so held by this Court in paragraph 9 of Madan Lal and Ors. v. State of J & K and Ors. [1995]1SCR908 as under: Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The Petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitions as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable....
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.... 62, 64, 66, 68, and 70. The High Court filed Writ Appeal No. 1496 of 2004 before the Division Bench. Mr. K.H. Siraj himself filed W.A. No. 1584 of 2004 against that part of the impugned judgment which was against him. Candidates occupying Rank Nos. 60 etc. who are affected by the judgment had themselves filed W.A. Nos. 1498, 1510, 1526, 1527, 1541, 1588 and 1574 of 2004. All these appeals filed by the High Court and by these parties were allowed setting aside the judgment of the learned single Judge. Mr. K.H. Siraj's appeal (W.A. 1584/2004) was dismissed. However, Mr. Siraj has chosen to file appeals only against the decision in W.A. No. 1496/2004 filed by the High Court and W.A. No. 1584 of 2004 filed by himself and has not chosen to file any appeal against the decision in the other appeals, W.A. No. 1498 of 2004 etc. filed by the affected parties. The decision therein has become final and, therefore, operates as res judicata and Mr. K.H. Siraj's appeal is to be dismissed as such. 54. Mr. L.N. Rao, concluding his arguments, sought to the argument of sympathy. The flimsy plea was made by him in this regard. We are unable to countenance the plea of sympathy. The appellan....